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Removing an executor of a will

The role of an executor

An executor is a person that is specifically appointed by a person in their will to administer their estate. This is an important role and comes with responsibilities and duties that are defined in what is called The Executors Oath.

The duties are found in section 25 of the Administration of Estates Act 1925. Their overriding duty is to collect in the estate and administer it correctly and legally. An executor has the duty to act independently and in the best interests of the estate, regardless of whether they too are a beneficiary.

When disputes arise 

There can be numerous reasons for wanting to remove an executor; however in practice it can be more complex than expected.  Ken McEwan, a director and solicitor in the dispute resolution team has recently successfully removed an executor where he was unsuitable to perform his duties.

The court has a discretionary power under section 50 of the Administration of Justice Act 1985 to appoint a substitute or remove the appointment of the executor. When considering using their discretion, the court will unlikely remove an executor for frivolous reasons such as being argumentative with the beneficiaries.

Angus v Emmott [2010] and Kershaw v Micklethwaite [2010] demonstrate that there needs to be more than friction or hostility between the executors and the beneficiaries to remove an executor. Whilst this is a consideration, on its own it is not enough. There needs to be a clear and compelling reason that would adversely affect the administration of the estate and the welfare of the beneficiaries.  

If you are considering making an application to remove an executor or are facing such an application, it is vital that you take legal advice as early as possible. For further information on this topic please contact Ken McEwan at ken.mcewan@gregglatchams.com or alternatively call on 0117 9069 442

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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